Natalia Sidorova v. East Lyme Board of Education (2011)

MEMORANDUM OF DECISION RE MOTION TO DISMISS (# 108)

FACTS

On June 16, 2010, the plaintiff, Natalia Sidorova, filed a ten-count complaint against the defendants, East Lyme board of education and town of East Lyme, regarding the termination of a school teacher.   The complaint alleges the following facts:  The plaintiff was a tenured teacher with the East Lyme school district.   On or about June 8, 2009, superintendent Paul Smotas hand delivered a termination letter to the plaintiff dated June 4, 2009, stating that the board had voted and “eliminated [her position] and will result in the termination of [her] services to the East Lyme School District.”   The defendants violated the plaintiff's rights under General Statutes § 10–151, which include providing notice that termination is under consideration, the opportunity to receive a written statement of reasons for termination consideration and a hearing.   The plaintiff was not given advance notice of her termination and therefore was unable to request a hearing.

On October 5, 2010, the defendants filed a motion to dismiss on the ground that the court lacks subject matter jurisdiction because the plaintiff failed to exhaust her administrative remedies required by § 10–151.   The defendants filed a memorandum in support of the motion, attaching the plaintiff's answers to second request for admissions directed to the plaintiff and the June 4, 2009 termination letter from superintendent Smotas to the plaintiff.   On December 7, 2010, the plaintiff filed an objection to the motion to dismiss.   On August 5, 2011, the defendants filed a reply.   On September 6, 2011, the plaintiff filed a surreply.   This matter was heard at short calendar on September 12, 2011.

DISCUSSION

“A motion to dismiss ․ properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court.”  (Internal quotation marks omitted.)  Bacon Construction Co. v. Dept. of Public Works, 294 Conn. 695, 706, 987 A.2d 348 (2010).  “Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction.”  St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003).

The defendants' motion to dismiss argues that the court lacks subject matter jurisdiction over the plaintiff's claims due to the plaintiff's failure to exhaust her administrative remedies because she did not file a written request for a hearing with the East Lyme board of education as required by § 10–151(d).  The plaintiff argues that she qualifies for an exception to the doctrine of exhaustion of administrative remedies because she was not given pre-termination notice that termination of her contract was under consideration as required in § 10–151(d), thus relieving her of the obligation to exhaust her administrative remedies and allowing her to file directly in Superior Court.   The defendants' objection argues that the plaintiff was properly notified that termination of her contract was under consideration, that amendments to the current version of § 10–151 do not provide for a pre-termination hearing and that the plaintiff does not qualify for an exception to the rule of exhaustion of administrative remedies because there was no “total default” by the board.   The plaintiff's objection argues that the superintendent's letter was notice of actual termination rather than termination being under consideration, that the statutory amendments did not affect the pre-termination process and that the plaintiff qualifies for an exception to the rule of exhaustion of administrative remedies.

Qualifying for an exception to the rule of exhaustion of administrative remedies bears on the determination of whether the court has subject matter jurisdiction over a case.  “Under [the exhaustion of administrative remedies doctrine], a trial court lacks subject matter jurisdiction over an action that seeks a remedy that could be provided through an administrative proceeding, unless and until that remedy has been sought in the administrative forum ․ In the absence of exhaustion of that remedy, the action must be dismissed.”   Garcia v. Hartford, 292 Conn. 334, 339, 972 A.2d 706 (2009).

This case involves termination of a tenured teacher's position;  the requirement for teacher termination is set forth by § 10–151.   Tenured teachers have a property right in their employment entitling them to constitutional protection with regards to termination.  La Croix v. Board of Education, 199 Conn. 70, 80, 505 A.2d 1233 (1986).   A tenured teacher can be terminated for “elimination of the position to which the teacher was appointed or loss of a position to another teacher ․” General Statutes § 10–151(d).  “A tenured teacher's challenge of an allegedly wrongful discharge, is governed by and limited to the statutory appeal process provided by § 10–151 ․ The Superior Court only obtains jurisdiction ․ after the teacher first resorts to all the appellate procedures in § 10–151 or avails themselves to one of the limited exceptions of the exhaustion doctrine.”   (Citation omitted.)   Niestemski v. Ramos, Superior Court, judicial district of Fairfield, Docket No. CV 06 5001386 (November 20, 2008, Bellis, J.) [46 Conn. L. Rptr. 684].  “Like any other general rule, the rule of exhaustion of administrative remedies is subject to some exceptions ․ only infrequently and only for narrowly defined purposes.”  La Croix v. Board of Education, supra, 79.   A teacher qualifies for an exception to the rule of exhaustion of administrative remedies when a board of education is in total default of its obligations under § 10–151.  Mendillo v. Board of Education, 246 Conn. 456, 470, 717 A.2d 1177 (1998).

Boards of education must follow a specific procedural protocol to terminate tenured teachers.   Pursuant to § 10–151(d), “prior to termination,” a teacher must be given written notice that termination is “under consideration” and the opportunity for a hearing, if requested.   This statutory language “is unyielding” and “a board of education may not terminate a teacher's contract of employment unless the board first notifies the teacher that such action is under consideration.”  (Internal quotation marks omitted.)  Petrovich v. Board of Education, 189 Conn. 585, 590, 457 A.2d 315 (1983).   The Supreme Court has held that failure to provide a plaintiff notice that termination is under consideration is insufficient under § 10–151(d).  La Croix v. Board of Education, supra, 199 Conn. 83.   On the other hand, when a plaintiff is aware that her termination is under consideration and will be brought to a vote, yet does not request a hearing, she has failed to exhaust her administrative remedies.  Murphy v. Young, 44 Conn.App. 677, 682, 692 A.2d 403 (1997).

In the present case, the plaintiff received a letter notifying her of her termination, which stated that the board had voted and “eliminated [her position] and will result in the termination of [her] services to the East Lyme [s]chool [d]istrict.”   The letter makes clear that the decision to terminate her had already been made and would be effective starting the next school year;  there is no indication that the decision was still under consideration.

Section 10–151 states that “prior to termination,” the defendants needed to give the plaintiff written notice that employment was “under consideration” and provide a statement in writing of the reasons and a hearing, if requested.   Though the letter did state that the staff reduction was made “solely [because] of budgetary constraints,” the superintendent's letter effectively constituted the termination and did not follow the § 10–151(d) requirement that notice be given prior to termination.   Because the defendants failed to give her notice of a consideration of termination rather than an actual termination, the plaintiff could not and was not obligated to request a pre-termination hearing.

The present case is distinguishable from Murphy v. Young, supra, 44 Conn.App. 682, where the defendant received notice that the board was considering termination, but did not request a hearing and therefore failed to exhaust her administrative remedies.   Here, the plaintiff had no notice that her termination was under consideration and thus did not have to exhaust her administrative remedies to bring this matter to the court.

The defendants argue that the principles cited in La Croix v. Board of Education, supra, 199 Conn. 70, and Petrovich v. Board of Education, supra, 189 Conn. 585, no longer apply because the cases were based on a prior version of § 10–151 and that later amendments to the statute no longer require pre-termination hearings.   The defendants are incorrect because amendments to the statute do not affect whether pre-termination hearings are required.   In the previous version, the statute stated that “the teacher concerned may file with such board a written request for a hearing, which shall be public if the teacher so requests or the board so designates.”   General Statutes (Rev. to 1972) § 10–151(b).¹  The current version of the statute states that a teacher can file a written request for a hearing and that the hearing can take place in front of the board of education, an impartial hearing officer, or that “[a] board of education may designate a subcommittee of three or more board members to conduct hearings and submit written findings and recommendations to the board for final disposition in the case of teachers whose contracts are terminated for reasons stated in subdivision (5) of this subsection.”  General Statutes § 10–151(d).  The amendment does not bear upon what point in the process hearings are available, but only specifies who can conduct the hearings.

The plaintiff did not follow the statutory procedures, but due to the defendants' failure to follow § 10–151, the plaintiff qualified for an exception to the rule of exhaustion of administrative remedies and did not have to exhaust her administrative remedies before bringing this action before this court.   Consequently, the court does not lack subject matter jurisdiction on the ground that the plaintiff failed to exhaust her administrative remedies.

CONCLUSION

For the foregoing reasons, the defendants' motion to dismiss is denied.

Martin, J.

FOOTNOTES

FN1. Starting with the 1983 amendment, § 10–151(b) was redesignated as § 10–151(d)..  FN1. Starting with the 1983 amendment, § 10–151(b) was redesignated as § 10–151(d).

Martin, Robert A., J.